delhi high court

Delhi High Court: An appeal was filed under Section 21(4) of the National Investigation Agency Act, 2008 (NIA Act) read with Section 43-D(5) of the Unlawful Activities Prevention Act, 1967 (UAPA) seeking to set aside the impugned order dated 18-05-2023 passed by the Additional Sessions Judge, Patiala House Courts, New Delhi wherein grant of regular bail was dismissed. A division bench of Siddharth Mridul and Anish Dayal held that at this stage when the charges are yet to be framed, and considering the nature of the offence that the appellant has been accused of, which involved being in the knowledge and the possession of arms, ammunition and serious explosives, with motive to trigger a terrorist activity, it would be difficult to reach a conclusion that the accused would be entitled to be released on regular bail, at this stage.

The appellant was arrested in an FIR on 14-09-2021 and was in custody for about 20 months as on the date of the filing of the appeal and has not been released for any period in the interim. The FIR was registered based on reliable input received regarding a terror module planning serial Improvised Explosive Device (IED) Blasts. As per the input, a group of entities was planning to undertake serial IED Blasts in India for which these multiple IEDs were arranged from unknown sources and apparently at an advanced stage of preparation. This input was verified and corroborated through different sources and it emerged that a deep-rooted conspiracy had been hatched by the terror module with its operatives in India to carry out the blasts. An in-depth investigation was lodged, and the FIR was accordingly registered inter alia under Section 120B IPC.

As per the State, a multi-pronged operation was launched, and the appellant was apprehended from Lucknow along with other accused persons. A consignment of two IEDs, two hand grenades and two pistols along with rounds were recovered after the arrest of an accused. Pursuant to interrogation, Sections 18, 20 of the UAPA, Sections 4, 5 of the Explosives Act and Section 25 of the Arms Act were added. During police remand, as per the State, further information was disclosed of the alleged conspiracy to receive similar consignments of IEDs. The charge sheet was filed in the said matter against the appellant along with other accused persons under Section 120B IPC, Section 18, 20 of the UAPA, Section 25 of the Arms Act and Section 4, 5 of the Explosive Substances Act.

The Court noted that Section 43-D(5) of the UAPA prohibits the release of a person accused of an offence punishable under Chapters IV & VI of the UAPA subject to the satisfaction of two conditions. Firstly, the public prosecutor has been provided an opportunity to be heard on the application for release; and secondly, the Court, on perusal of the case diary or the charge sheet, is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. The Court can examine the charge sheet, if it has been filed, and based on that form an opinion whether there are reasonable grounds that the “accusation” against the appellant is “prima facie true”.

Placing reliance on National Investigation Agency v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 and Vernon v. State of Maharashtra, 2023 SCC OnLine SC 885, the Court further noted that following tenets can usefully be culled out with respect to the extent of exercise to be undertaken by the Court in order to reach a conclusion under Section 43-D(5) UAPA:

i) Elaborate examination or dissection of evidence is not required to be done at this stage;

ii) The Court is merely expected to record findings on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offences;

iii) The totality of the material gathered by the investigating agency presented along with the charge-sheet and the case diary is to be assessed;

iv) Individual pieces of evidence or circumstance are not necessary to be analyzed;

v) Documents which form part of the evidence may not be discarded at this stage on the ground of them being inadmissible, since that would be a matter of trial;

vi) The Court must look at the contents of the documents and take into account such documents, as it is;

vii) A surface analysis of probative value of the evidence may be undertaken.

On perusal of the charge sheet in detail along with the documents relied upon by the investigating agency, the allegation on the appellant in this case is about participating in a conspiracy to engineer IED bomb blasts in India as a part of terror activities. Even a surface analysis of the evidence presented by the State would reveal that the accused was primarily charged with conspiracy along with other co-accused of possession of IEDs and other arms and ammunition including grenades and pistols for the alleged terror activities. While the initial investigation was triggered having received inputs from sources that a terrorist module was trying to execute serial IED blasts in India, pursuant to an extensive investigation carried out in multiple States, on the basis of the said information, conspiracy was unearthed which involved a number of people allegedly planning to execute series of terrorist attacks including in Delhi, on behalf of certain organizations.

As per the State, the statement of a witness recorded under Section 164 CrPC corroborated the factum of the consignment containing arms and explosives being kept in a bag at the appellant’s house which in the presence of the witness was given back to a co-accused. The reliance of the investigating agency on the statement under section 164 CrPC is critical in the assessment of the probative value of the evidence, albeit a surface analysis. The statement recorded before a Magistrate, which will be subject matter of trial finally in relation to its probative value, would still, on a surface analysis, be reasonably relied upon for the purpose of this appeal. Thus, similar facts along with CDR analysis are yet to be proved by the State, however, it would be difficult to reach a conclusion that the accusations against the appellant are not prima facie true.

The Court concluded that having considered the charge-sheet, the totality of the material based on broad probability regarding the involvement of the accused, the documents put forward by the investigating agency and a surface analysis of probative value, there are reasonable grounds for believing that the accusation against the appellant is prima facie true. Consequently, the conditions in Section 43-D(5) UAPA stand satisfied.

Thus, the Court held that the appellant was an integral part of the recovery of arms and explosives. This, prima facie, cannot be said to exculpate the accused/appellant at this stage for the purpose of bail.

[Mohd Amir Javed v State, 2023 SCC OnLine Del 5777, decided on 18-09-2023]

Advocates who appeared in this case :

For the Appellant: Mr. Kartik Venu, Ms. Nitika Khaitan and Ms. Priya Vats, Advocates.

For the Respondent: Mr. Laksh Khanna, APP for the State with Insp. Vinay pal and SI Sachin, PS — Special Cell.

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